U.S. Top Court Tackles Churchstate Conflict Involving Schools, by David G. Savage, Vancouver Sun, October 6, 2011

U.S. Top Court Tackles Church-state Conflict Involving Schools

By David G. Savage
Vancouver Sun
October 6, 2011

http://www.vancouversun.com/life/court+tackles+church+state+conflict+involving+schools/5512769/story.html

[oral argument]

The U.S. Supreme Court justices struggled to resolve a profound church-state conflict concerning whether the nation's civil rights laws protect teachers at religious schools.

WASHINGTON - The Supreme Court justices struggled Wednesday to resolve a profound church-state conflict concerning whether the nation's civil rights laws protect teachers at religious schools.

It is an issue the high court has not ruled on before, and it left the justices divided and sounding uncertain over whether the Constitution's protection for religious liberty shields church schools from some, most or all anti-discrimination claims involving their employees.

The Obama administration drew sharp rebukes from religious conservatives and liberals when it entered the case on the side of a teacher who was fired from an evangelical Lutheran school in Michigan. In its brief, the administration argued that the Constitution does not shield "religious employers" from anti-discrimination claims.

That view also drew the ire of several justices.

Chief Justice John G. Roberts Jr. pressed Leondra Kruger, an assistant solicitor general, to say whether the Constitution calls for special protection for religious institutions. She replied there was no "categorical" protection for churches or church schools.

"That's extraordinary," said Justice Antonin Scalia. "So who you pick to teach theology or to teach religion has to be subject to state control?"

Justice Elena Kagan said she agreed with Scalia.

"I too find that amazing," she said, that the administration would argue the First Amendment does not give church schools significant protection from lawsuits.

Kruger said she believed churches should win cases involving ministers but that the law should protect employees from being punished for filing a civil claim. It is "a balancing of interests," she said.

The case before the court arose over a teacher's dismissal and her threat to sue.

Cheryl Perich was hired to teach fourth graders at the Hosanna-Tabor Evangelical Lutheran School. She taught traditional subjects like math, science and English, but also taught religion and sometimes led a chapel service. She took a leave of absence because of narcolepsy and school officials later refused her request to return to work. When she threatened to file a complaint with the federal Equal Employment Opportunity Commission, she was fired. School officials said she was a "called" teacher and, as such, was not entitled to take disputes outside the church.

Her legal claim was that she was illegally retaliated against for raising a claim under the American with Disabilities Act. However, a ruling in her case is expected to apply to all similar anti-discrimination laws as well.

At one point, Justice Sonia Sotomayor said she agreed on the need to protect those who file complaints. She cited cases of church employees who filed complaints about the sexual abuse of children.

"Doesn't society have a right to say that certain conduct is unacceptable?" she said.

In recent decades, most federal appeals courts have adopted a "ministerial exception" to the civil rights laws. That rule shields churches and temples from civil rights claims involving its ministers. In a commonly cited example, a woman could not sue a Catholic parish for violating the sex-discrimination laws for refusing to hire her as a priest.

But it has remained unclear whether the "ministerial exception" extends broadly to cover all church schools or whether it is limited to ministers and the clergy.

The chief justice said the question is complicated because "churches have a different idea over who is a minister." Some believe only priests teach the faith, while others believe that "all adherents" are ministers of the faith.

The case of Hosanna-Tabor v. EEOC has drawn wide notice among religious and civil rights groups, and the justices gave no strong clue as to how they will decide the question.